SARATOGA, aside from the prestige of its mineral waters, is pre-eminent by
being the residence of many distinguished lawyers – men who have adorned the
bench by their individual and professional worth. Indeed, during one period of
its existence, Saratoga was the centre of a galaxy of legal minds that cast a
halo around whatever came within the circle of its influence. The names of
Walworth and Willard, Cowen, Warren, and Hill, Rogers and Nash, Beach and
Barbour

{Oliver L. Barbour was born in 1811, in Washington County, N.Y. He early
removed to Saratoga Springs, and, as the confidential clerk of his relative,
Chancellor Walworth, became familiar with those great legal principles, the
elucidating of which has given him such an enviable reputation in the
profession. Hamilton College acknowledged his work by conferring on him the
honorary degree of LL.D. He yet resides at Saratoga, greatly honored both at
home and abroad – his works being highly commended by Chief-Justice Story, the
American Jurist
, and other authorities of high repute. He is the editor of the following legal
treatises: I.
Equity Digest, embracing English, Irish, and American Reports
, 4 vols. 8vo; II.
Collyer on Partnerships
; III.
Chitty on Bills
; IV.
A Treatise on Criminal Law
; V.
A Treatise on the Law of Set-off
; VI.
A Treatise on the Court of Chancery
, 2 vols.; VII.
Reports of Cases Decided in the Court of Chancery
, 3 vols.; VIII.
Reports of Cases Decided in the Supreme Court of the State of New York
, 18 vols. His latest works are a revision of his
Chancery Practice
and
Equity Practice
– the last especially designed to adapt the Code of New York to the practice
of other States.}
will at once occur to the reader; while the names of others now living in
Saratoga, and also eminent in their profession, show that the mantles of the
departed have fallen upon worthy successors. The present chapter will be
devoted to a sketch of one of the most brilliant of these legal lights, viz.,
Esek Cowen.

Esek Cowen, the father of Patrick H. Cowen and the late Sidney J. Cowen, was
descended from John Cowen, a native of Scotland, who settled in Scituate,
Mass., in 1656. He was born in Rhode Island, February 24, 1787. His father’s
family removed to New York State in 1790, settling in Greenfield, Saratoga
County. About four years afterward he removed to Hartford, Washington County.
At sixteen years of age, he began the study of law in the office of Roger
Skinner at Sandy Hill, continuing his studies afterwards with Zebulon Shepherd.
He was admitted to the bar in 1810, and began the practice of law with Gardner
Stowe, in Northumberland, Saratoga County. In 1811 he married a daughter of
Colonel Sidney Berry, and the following year removed to Saratoga Springs.

{Colonel Sidney Berry, the first Surrogate of Saratoga County, served in the
American Revolution; and it was he who was detailed to receive, on the 30
th
of September, 1776, the messenger sent by Lord Howe to invite Dr. Franklin,
John Adams, and Mr. Luttrage to a conference on Staten Island.}
Immediately after the adoption of the Constitution of 1821, and the
organization of the judicial system under it, he was made Reporter of the
Supreme Court, continuing in that office until 1828, when he was appointed
Judge of the Fourth Circuit. On the withdrawal, in 1835, of Judge Savage from
the bench of the Supreme Court, he was appointed to fill the vacancy, and
continued in that office until his decease.

The high reputation which Judge Cowen enjoyed in his profession, and the high
honors which marked the public appreciation of it, were the fruits of his own
unaided vigor of intellect. He was peculiarly a self-made man. Six months’
attendance at a common school was all the education he received. The care of an
intelligent mother and his own ambition and energy supplied the rest. At the
age of fifteen he began teaching school, and so continued during the winters in
which he studied his profession. A devoted student, not only of his profession,
but of literature in general, he became, in spite of the limited education of
his youth, a well-instructed and even a learned man. He taught himself the
ancient languages, and became thoroughly conversant with English literature.
But it was as a jurist that Mr. Cowen was distinguished. He was a clear and
accurate writer – a prompt, acute, learned, and upright judge. His energy, as
will hereafter appear, was indomitable. While Judge of the Circuit he made it
his constant practice to hear before adjournment every cause ready for trial.
Yet, at this period he retired from labors which exhausted the bar, unwearied,
to those tasks of study and of laborious compilation of which he has left the
monuments in his
Treatise
and his
Notes on Evidence
.

The extraordinary endurance with which Judge Cowen was gifted was the result of
a splendid constitution, strengthened by vigorous and systematic exercise in
the open air. His athletic frame and fine muscular development were often the
subjects of remark, and he was wont to say that, when a young man, he could cut
his two cords of wood a day without the least undue strain. This physical power
was further developed by the singular abstinence of his habits, both in eating
and drinking. This abstinence was the result of a rule adopted in his youth;
and it may be worthy of note, in this connection, that he was, in 1812, one of
the founders, in Northumberland, Saratoga County, of the first temperance
society in the United States.

In 1817, he associated with him in partnership Mr. William L.F. Warren, who had
previously been a law student in his office – a partnership which continued
until Judge Cowen was appointed State Reporter in 1824. Mr. Judiah Ellsworth
was also associated with him after his dissolution with Judge Warren, for five
or six years. Soon after his removal to Saratoga Springs, he purchased property
on Congress Street, and built the Stone House, so long known as his residence,
and also the office where were written
Cowen’s Treatise
and
Notes on Phillipps’ Evidence
.

{The stone house and office are yet standing; the former occupied as a saloon
and residence by Michael Grimes, and the latter as a blacksmith-shop by Thomas
Flanagan. The office was also at one time the village lock-up."}
The latter of these works represents a labor of eleven years, in the last
three of which he was assisted by Nicholas Hill and William L.F. Warren.
{In 1839, Gould, Banks & Co. published the work last named in four volumes.
Vol. I. is a republication of Mr. Phillipps’ first volume; Vols. II. and III.
are well known as
Cowen and Hill’s Notes
to Vol. I. The second volume of Mr. Phillipps’ work is republished in Vol.
IV., "With Notes." The title-page gives as the author a "Counsellor-at-Law,"
and very few are aware that these notes to Vol. II. of Phillipps’ were prepared
by William L.F. Warren, who states in his preface: "The notes to this volume
were undertaken at the suggestion of Judge Cowen, and with the expectation of
being supervised by him. The official avocations of the Judge, however, were
such that this expectation was early abandoned, and the work was continued on
the sole responsibility of the present editor. The author, therefore, is no
otherwise indebted to the Judge than for the use of his office and valuable
library." These volumes, together with
Cowen’s Treatise
, were, during one generation at least, more extensively consulted than any
other law books then extant.}
Here were written those learned opinions which illumined the
Reports
in the best days of our jurisprudence, and which have since rendered his name
illustrious; and here, also, was written his famous opinion in the celebrated
"McLeod case," in which were discussed the question of perfect and imperfect
war, and other great national principles, and which by its marked learning and
ability attracted the attention of the civilized world. "The Court," says a
learned authority of the day, "
in refusing to discharge McLeod
, have nobly maintained the supremacy of the laws, and vindicated the dignity
and rights of this State." The law there laid down by Cowen was, in fact,
conceded by all eminent jurists, both in this country and abroad, to be sound
doctrine, and the true exposition of international law – none being more ready
to admit the full force of those governing principles than the learned Judges
of England. Judge Cowen was also fully sustained in his opinion by his
associates on the bench – Chief-Justice Nelson and Justice Bronson.

Of Judge Cowen’s opinions, which so eminently distinguished him as a jurist, it
has been said, that "in their depth and breadth of research, and their strength
and reason of bearing, they are not excelled by those of any judges in England
or America." "His opulent mind, his love of research, caused him to trace every
legal opinion to its fountain-head – to discover every variation between
apparently analogous precedents; for him, all authority, whether English,
French, or American, was as familiar as the simplest elemental principle. Like
Lord Mansfield, to whom he has frequently been compared, he was accustomed, in
the preparation of his opinions, to a liberal expenditure of mental capital –
an excess of intellectual labor which renders them the triumphs of a great
genius, impelled by an unprecedented industry."

The predominant characteristics of Judge Cowen’s mind were penetration,
quickness of perception, force and originality of thought. He was a man of
untiring zeal in intellectual labors – with fixed habits of intense application
– and while yet young he became and ripe and varied student, earning the
reputation of being one of the most finished scholars as well as one of the
most erudite judges of the nation. He devoted never less than fourteen hours a
day to study – often protracting his labors far into the night. An amusing
anecdote illustrating this is in point. At such times he never consulted his
watch, but used wax-candles – starting with fresh ones every evening; when they
had burned to the socket, it forced him to bring his labors to a close. On one
occasion he thought he would substitute for them a lamp, as requiring less
attention in snuffing. The hours wore on, and the oil being unexhausted,
daylight found him still at his labors. He made the trial a second night, but
with no better success, and was obliged to return to his candles.

Such, moreover, was the rapidity of his mental operations, the quickness of his
perceptions, that he could almost intuitively understand and grasp the argument
of counsel, and follow them through the chaos of precedent with unerring
accuracy while engaged in studying the details of the case in the papers before
him. Frequently, during the argument of a cause, he would become so devoted to
the papers, now marking some important sentence, and now making some memoranda
on the margin, that he apparently gave no attention to the reasoning of
counsel. This seeming indifference and inattention was often very embarrassing,
and once gave rise to the following anecdote. On one occasion when the late
Samuel Stevens was engaged in the argument of an important case, Judge Cowen
became so absorbed in reading the case as to give Stevens the impression that
he was not giving his argument the least attention. As it was a suit involving
many intricate legal questions, Stevens was particularly anxious that Cowen
should thoroughly understand him, and his seeming want of attention to his
argument gave that eminent and usually self-possessed lawyer so great
uneasiness that he proceeded with considerable hesitation and embarrassment.
While the latter was devising in his mind some means by which he could gain the
undivided attention of the court, Judge Cowen, suddenly raising his eyes from
the papers before him, said: "Mr. Stevens, you have several times in your
argument referred to the eighth section of the act to prevent usury, as
providing that all and every person sued for the same, shall be compelled to
answer on oath to any bill preferred for discovering the money taken
usuriously. I do not understand the eighth section that way. Does the learned
counsel so understand it?" "Certainly I do," was the reply. "Are you not
mistaken?" "I do not think I am, your Honor, but I will see," said Stevens,
opening the statutes which lay before him, and turning to the section. "Well,
your Honor, I am mistaken; it is the fourth section that contains the provision
I allude to, and I am most happy to be corrected by your Honor." "Proceed, Mr.
Stevens, I do not desire to interrupt you," said the judge, making a note with
his pen at the bottom of the written page before him. "I was delighted with
Judge Cowen’s interruption," whispered Stevens to Benjamin F. Butler, after
concluding his argument, "for I thought he was not listening to me at all, but
I see he understood the case better than I did, for I was getting confoundedly
nervous at his apparent indifference to my argument."

Among his other characteristics Judge Cowen possessed, as before hinted,
indomitable energy and remarkable powers of endurance. Several anecdotes
illustrating these traits are worthy of mention. It is related of him that on
one occasion, while he was Circuit judge – for the purpose of closing up the
business of the term – he sent the Sheriff to the hotel at midnight to arouse
the District Attorney to try the last case on the criminal calendar.
The case was tried
then and there, and the business of
that
circuit, at least, was closed up. Major James R. Craig, of Schenectady, tells
also the following incident of his boyhood, when for the first time, he was
examined as a witness. The plaintiff, who resided in Saratoga County, had sued
Craig’s father, and the cause was tried at Ballston, before Judge Cowen. About
midnight Craig was called as a witness for the defence, and had been examined
at length, when, a discussion arising between the counsel as to the
admissibility of evidence, he fell asleep. How long the "sparring" continued he
does not remember, but he was suddenly awakened by Judge Cowen saying, "You can
answer the question." Rousing up and rubbing his eyes he replied, "What
question do you mean, judge? I have been asleep." His examination continued
until two o’clock in the morning, and his recollection is, to this day, most
vivid of the long, dark walk afterward down the hill from the Court-House and
through the streets to the Sans Souci Hotel. Again, on another occasion, the
Circuit term of the Court in Essex County, while Cowen was Circuit judge, began
on Tuesday and ended on Saturday. At one of these terms in January, late on
Saturday night, there still remained an important case untried. Judge Hand was
counsel on one side, and the late General Ross on the other. Witnesses on both
sides had been subpœnaed and were in attendance. The parties and counsel being
equally desirous of trying the case, Judge Cowen said that he had to be at the
Clinton Circuit on Tuesday morning, but would detain the jury till Monday and
try the case on that day, provided the principals in the suit, with their
counsel and witnesses, would be at the Court-House promptly at seven o’clock in
the morning. All agreeing to this, the Court was accordingly adjourned to that
time. On Sunday afternoon there began one of those snowstorms peculiar to that
region, which continued unabated throughout the entire night and during the
following day. Nevertheless, precisely at seven o’clock Monday morning, Judge
Cowen stood on the steps of the Court-House, in the midst of the driving storm,
with the snow up to his knees – but neither the clerk, the jury, the parties,
the counsel, the witnesses, nor the spectators were there! After looking about
for a few minutes, he made formal proclamation that the Circuit Court, and
Court of Oyer and Terminer, in and for the County of Essex, was adjourned
sine die
, and departed.

In social life Judge Cowen was invariably cheerful – at times almost jocose. He
drew all hearts to him, and disarmed the criticism of those superficial
observers who called him cold; for, although intensely practical and of great
independence of character, yet in him there was no lack of fine sensibility, as
all felt who had mingled sympathies with him in the hours of social relaxation.
In one point, especially, he greatly resembled his connection by marriage, Mr.
Miles Beach. No one who needed aid ever appealed to him in vain; and many are
they whom by material means and kindly advice he has started on the road to
fame and fortune. The late Gideon M. Davison, in his remarks on the occasion of
Judge Cowen’s death, says: "He was my early friend and benefactor – the one
who, when I needed aid, kindly took me by the hand and led me through various
trials – the one, in fact, who laid the foundation of all I have of earthly
possessions." And doubtless there are others to-day who, if they were disposed
to be as noble and generous as Mr. Davison, could come forward and offer a
similar tribute on the altar of his memory.

Nor was his liberality confined to acts of private kindness. In 1832 he united
with Dr. Clarke and Judge Walton in building an Episcopal Chapel on the corner
of East Congress and Putnam Streets – Cowen furnishing the money, Clarke the
land, and Walton the timber. It was called Bethesda Chapel, and in it the
Episcopal Society worshipped until the completion of their present church on
Washington Street.

Judge Cowen’s house was frequently the scene of kindly hospitality, where those
politically and intellectually eminent were made welcome and entertained with
that quiet courtesy which distinguished his personal demeanor. His genial
sympathies, rare poetic taste, humor, and love of music, united to a voice of
great sweetness in singing, made him a delightful companion, one of his
favorite pastimes being to accompany Mrs. Miles Beach in singing those
plaintive Scotch ballads, such as "Highland Mary," "Bonnie Doon," and "Mary in
Heaven." His house was also the home of the oppressed. The Canadian patriots,
L.J. Papineau, Doctors O’Callaghan, Nelson, and D’Avignon, found here a hearty
welcome and a safe asylum. Under his roof Mr. Papineau, under an assumed name,
passed the first night of his sojourn in Saratoga, starting the following
morning, accompanied by the late Sidney J. Cowen, for "the lines," in search of
his son, who had also just made his escape from Canada.

In person Judge Cowen was tall, being over six feet in height, and possessed of
great dignity of presence united to the most simple and unassuming manners. A
correspondent of one of the leading papers of the State thus describes his
personal appearance when on the bench of the Supreme Court the year before his
death: "Justice Cowen has his seat on the left of the Chief-Justice, where he
sits solitary and alone, watching with care and attention the advancements made
by the counsel. Justice Cowen has the highest order of a reflective mind. The
marks of deep thought rest upon his brow – his locks are silvery white, and the
blood has so much forsaken his veins, that when he closes his eyes, which he
frequently does, he seems as unearthly as the ghost of the Venetian maiden who
appeared to her lover before the walls of Corinth. His hands are bloodless –

"And were so transparent of hue

You might have seen the moonshine through."

Judge Cowen died in the city of Albany on the night of the 11
th
of February, 1844. Many still remember the gloom that pervaded that city when
his death was announced the following morning, and the obituary honors which
were paid to his memory.

{Among other resolutions passed by the Legislature was the following: "
Resolved
, That as a mark of respect for his great learning, varied acquirements,
simplicity of manners, unostentatious deportment and integrity of character,
the members of the Legislature will wear the usual badge of mourning thirty
days."}
The funeral in Albany took place on the 13
th
. The coffin was borne to the great hall of the Capitol followed by the clergy
of the city, the Governor and State officers, both Houses of the Legislature,
the judges and members of the bar, the corporation of the city and a large body
of citizens. Religious ceremonies having been held, the procession again
formed, and accompanied the remains as far as the Patroon’s, on the route to
Saratoga Springs, where, on the 15
th
, the last obsequies were performed, Rev. Dr. Babcock, of Ballston, reading the
burial service, and Rev. Edward Davis delivering an impressive discourse.

The bells of the different churches were tolled, and all the stores and shops
closed while the procession was in motion and during the ceremonies at the
grave.